Gale Encyclopedia Of American Law 3Rd Edition Volume 12 P20 doc

arraignment, the agents asked Konigsberg “‘why
he was in this garage and just what had taken
place * * * and * * * if he wished to cleanse
himself or explain * * * what his reasons for
being there, were, why at the other individuals
were there.’” (Id. at p. 852.) Konigsberg then
male some incriminating statements. Among
other reasons for not applying Escobedo, the
court said that the purpose of the interrogation,
even though it took place after the arrest, was
not to elicit a confession. The court stated, “The
uncontradicted purpose of the discussion was to
give Konigsberg a chance to explain his presence
in the garage if he could; to hear Konigsberg’s
side of the story. * * If Konigsberg or any of the
other people caught in the garage could account
for their presence this was their opportunity,”
(Id. at p. 853; see People v. Ghimenti (1965) 232
A.C.A. 111, 119, 43 Cal.Rptr. 504.)
[4] The test which we have described does
not propose a determination of the actual intent
or subjective purpose of the police in under-
taking the interrogations but a determination
based upon the objective intent of the inter-
rogators, we must, in order to determine if the
police are carrying out “a process of interroga-
tions that lends itself to eliciting incriminating
statements” (Escobedo v, State of Illinois, supra,
378 U.S, ar p. 491, 84 S.Ct. at p. 1765), analyz e
the total situation which envelops the question-
ing by considering such factors as the length of

the interrogation, the place and time of the
interrogation, the nature of the questions, the
conduct of the police and all other relevant
circumstances.
As some writers have suggested, “An objec-
tive test is * * * likely for the new American rule.
for it is noteworthy that the question of ‘purpose
to elicit a confession’ may be more readily
determined from the objective evidence—such
as the nature of the questions and accusa-
tions put to defendant and the length of the
interrogation—than the question whether the
police had decision to charge the defendant.”
(Enker and Elsen, Counsel for the Suspect:
Massiah v. United States and Esobedo v. Illinois
(1964) 49 Minn.L.Rev. 47, 71.)
[5] In the instant case all of the above
conditions had been fulfilled. Defendant was
not only under arrest at the time he confessed
but had been in custody for five days and had
been interrogated daily. In his summation, the
prosecutor referred to the interrogation of the
defendant on January 31 concerning the robber
of Mrs. Wells as an “accusatory circumstances.”
A police officer testified that on February 5 police
office testified that on February 5 he entered the
interrogation room and said to the defendant,
“Roy, you killed that old woman. * * *” Such
extensive interrogations during the period of
defendant’s incarceration could serve no other

purpose than to elicit incriminating statements.
Thus, prior to his confession, the defendant was
entitled to counsel under the Esobedo case. for
the “accusatory” stage had been reached.
We do not think the contrary contention of
the Attorney General that defendant’s confes-
sion was procured at the investigatory stage can
prevail in the light of the above facts. The
Attorney General argues that the fact that the
Mitchell watch had not been found among
defendant’
s possessions but in a bureau drawer
containing the possessions of Lillian Lara, as
well as the fact of the continued custody of four
other suspects of the crime, establishes that the
police were still conducting a “general inquiry”
and had not “begun to focus” on the defendant
demonstrates that the police be lieved that they
had reasonable ground for attributing to him
the commission of the crimes. The continued
custody of other suspects does not automatically
negate the advent of the accusatory stage as to
defendant; the above conduct of the police
destroys the contention.
Concluding, therefore, that prior to his con-
fession defendant was entitled to counsel under
Esobedo, we probe the second major premise of
the Attorney General that, despite the absence of
a showing advice to defendant of his rights to
counsel and to remain silent, we can presume

that such warning was given. The Attorney
General bases his contention upon People v.
Farrara (1956) 46 Cal.2d 265, 294 P.2d 21,
which, in the absence of evidence to the contrary,
expressed a presumption that the officers in that
case lawfully performed their duties.
Farra, we believe, can readily be distin-
guished from the instant case. There, appellants
contended that the police obtained certain of
the adduced evidence during and illegal search
and seizure. Since the trial occurred prior to our
decision in People v. Cahan (1955) 44, Cal.2d
434, 282 P.2d 905, 50 A.L.R.2d 513, declaring
such evidence inadmissible, the record was
barren of any showing as to the legality of the
search. This court said, “It is settled * * * that
error will not be presumed on appeal, * * * and
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
MILESTONES IN THE LAW MIRANDA V. ARIZONA 177
SUPREME COURT
OF CALIFORNIA,
MARCH 1965
in the absence of evidence to the contrary it
must also presumed that the officers regularly
and lawfully performed their duties. Code Civ.
Proc. § 1963 (1, 15, 33) * * *.” (46 Cal.2d ar
p. 268, 294 P.2d ar p. 23).
[6,7] Whereas, long before Cahan, searches
and seizures illegal under federal law had been
illegal California (Cal. Const., art. I, § 19), no

such antecedent illegality had been present in
the Esobedo situation. Indeed, Cahan merely
provided a remedy in the form of exclusion for
evidence illegally seized. Until Escobedo and
Dorado, however, the law of this state did not
give an accused a right to counsel during pre-
arraignment interrogations and therefore did
not require that an accused be advised of his
rights to counsel and to remain silent if he had
not otherwise waived those rights.
6
We cannot
presume that the police acted in accordance with
an unannounced constitutional principle. We
therefore cannot presume in the face of a silent
record that the police informed defendant of his
right to remain silent and of his right to counsel.
(See Carnley v. Cochran (1962) 369 U.S. 506, 82
S.Ct. 884, 8 L.Ed.2d 70.)
In Carnley v. Cochran (1962) 369 U.S. 506,
82 S.Ct. 884, the United States Supreme Court,
said, “The record must show, or there must
be an allegation and evidence which show, that
an accused was offered counsel but intelligently
and understanding rejected the offer. Anything
less is not waiver.” (Id. at p. 516, 82 S.Ct. at
p. 890.) It follows that in order to establish a
waiver of the right to the assistance of counsel
the record must indicate that the defendant was
advised of his right to counsel and to remain

silent or that he knew of these rights and
intelligently and knowingly waived them.
To presume in the instant case that absent
the warnings defendant knew of his right to
counsel at the prearraignment stage prior to
the time that the United States Supreme Court
established this right in Esobedo would be to
ascribe to him an utterly fictitious clairvoyance.
[8] Since we have said that the use of a
confession obtained in violation of the defen-
dant’s constitutional right to counsel compels a
reversal, we must reverse the judgment on the
counts involving the robbery and murder of
Miss Mitchell. (People v. Dorado (1965) 62 A.C.
350, 368–369, 42 Cal.Rptr. 169, 398 P.2d 361.)
Because defendant, however, confessed only
to the robbery and murder of Miss Mitchell, we
must determine if the erroneous admission of
his confession constituted prejudicial error as
to those other robberies for which he was
convicted but as to which he did not confess.
(See People v. Dorado, supra, 62 A.C. 350, 368,
42 Cal.Rptr. 169, 398 P.2d 361.) A full exami-
nation of the record indicates that the error
requires the reversal of the judgment on these
counts since “it is reasonably probable that a
result more favorable to the appealing party
would have been reached in the absence of the
error.” (People v. Watson (1956) 46 Cal.2d 818,
837, 299 P.2d 243, 255.)

Thus the evidence adduced at the trial
indicated that the same person participated in
all of the charge robberies. All of the robberies
took place in the same neighborhood; they were
all committed in the same fashion; the police
found at defendant’s residence items stolen
during each of the robberies. Because of the
inter-relationship among these crimes, defen-
dant’s confession to the robbery and murder of
Miss Mitchell composed strong evidence of
his guilt on each of the robberies to which he
did not confess.
The judgment is reversed.
Traynor, C. J., and Peters and Peek, JJ.,
concur.
Burke, Justice (concurring).
The majority bases its reversal upon the
admission into evidence of a voluntary confes-
sion in violation of the defenda nt’s constitu-
tional right to counsel, based upon this court’s
decision in People v. Dorado, 62 A.C. 350, 42
Cal.Rptr. 169, 398 P.2d 361. As noted in my
dissent in Dorado, concurred in by Mr. Justice
Schauer, assuming that there was error in the
admission of such voluntary confession the
mandate of section 4 of article VI of the Ca lifornia
Constitution requires this court to review the
entire record to determine the probability that
a result more favorable to the defendant would
have been reached had the error not been

committed (People v. Watson (1956) 46 Cal.2d
818, 299 P.2d 243) and that therefore there was
a miscarriage of justice. The majority opinion
6
Section 825 of the Penal Code, guaranteeing a person
arrested the right to see an attorney, does not signify that
counsel must be allowed to be present during interrogations.
(People v. Garner (1961) 57 Cal.2d 135, 165, 18 Cal.Rptr. 40,
367 P.2d 680 (Traynor, J., concurring).)
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
178 MIRANDA V. ARIZONA MILESTONES IN THE LAW
SUPREME COURT
OF CALIFORNIA,
MARCH 1965
in the case at hand does not indicate that there
was a review of “the entire cause, including the
evidence” and that the majority is of “the opinion
that the error complained of has resulted in a
miscarriage of justice.” (Const., art VI, § 4.)
Under the mandate of article VI, section 4,
and of the supplemental rule of this court as to
the test to be applied in determining whether
such an error in the admission of evidence
compels reversal (People v. Watson, supra
(1956) 46 Cal.2d 818, 836, 299 P.2d 243), I
have reviewed the entire cause, including the
evidence, and have concluded that it is reason-
ably probable that a result more favorable to
the defendant would have been reached if
the subject evidence had not been erroneously

admitted against him. Under these circumstances
the error compels reversal and I, therefore,
concur in the reversal of the judgment of
conviction.
Schauer, Justice* (dissenting).
I concur generally in the law as stated by
Mr. Justice Burk in his concurring opinion, but
after review of the entire cause, including the
evidence, am not affirmatively persuaded that
a result more favorable to the defendant would
have been reached in the absence of the declared
error.
The encompassing net of interwoven cir-
cumstances established by the prosecution is to
me inherently more convincing than the direct
uncorroborated statement of any single witness
could ordinarily be. The confession here is
significant principally because it is consistent
with the only conclusion reasonably supported
by the proof independently made. Assuming that
such additional—in effect, cumulative—proof
was erroneously received does not persuade me
to the conclusion that in the absence of the
error a result more favorable to the defendant
would have been probable.
I would affirm the judgment in its entirety.
McComb, J., concurs.
*
Retired Associate Justice of the Supreme Court sitting
under assignment by the Chairman of the Judicial Council.

GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
MILESTONES IN THE LAW MIRANDA V. ARIZONA 179
SUPREME COURT
OF CALIFORNIA,
MARCH 1965
IntheSupremeCourtofthe
United States
October Term, 1965
No. 759
ERNESTO A. MIRANDA, PETITIONER,
V.
THE STATE OF ARIZONA, RESPONDENT
ON WRIT OF CERTIORARI TO THE SUPREME
COURT OF THE STATE OF ARIZONA
Brief for Petitioner
LEWIS ROCA SCOVILLE BEAUCHAMP & LINTON
John J. Flynn
900 Title & Trust Building
Phoenix, Arizona 85003
Attorneys for Petitioner
k
INDEX
Opinion
Jurisdiction
Constitutional Provisions Involved
Question Presented
Statement
A. Proceedings on interrogation and trial
B. Proceedings in the Arizona Supreme Court
Summary of Argument

Argument
I. There is a right to counsel for arrested persons
when interrogated by the police
A. Federal experience
B. The constitutional principles applied to state
criminal proceedings; the development to
Escobedo
(a) The Powell period (1932–1942)
(b) The Betts period (1942–1963)
(c) The Gideon period (1963–)
C. Escobedo and the present day
D. The right to counsel at interrogation: 1966
II. Practical considerations of law enforcement
accord with giving the Sixth Amendment its full
meaning
A. Cost factors
B. The effect on law enforcement
Conclusion
Appendix
k
OPINION
This is a certiorari to the Supreme Court of
Arizona, to review a decision reported at 98
Ariz. 18, 401 P. 2d 721, and reprinted R. 72.
JURISDICTION
Certiorari has been granted to review a
judgment of the Supreme Court of Arizona in a
criminal case, entered on April 22, 1965, which
became final on May 7, 1965. The petition for
writ of certiorari, filed in July of 1965, was

granted on November 22, 1965, and the case, in
forma pauperis, was placed on the appellate
docket and summary calendar. The issue is
whether the conviction of petitioner violates his
constitutional rights under the Sixth and
Fourteenth Amendments to the Federal Consti-
tution. This Court has jurisdiction under 28
U.S.C. Sec. 1257(3).
CONSTITUTIONAL PROVISIONS
INVOLVED
“In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district
wherein the crime shall have been committed,
which district shall have been previously ascer-
tained by law, and to be informed of the nature
and cause of the accusation; to be confronted
with the witnesses against him; to ha ve compul-
sory process for obtaining Witnesses in his favor,
and to have the Assistance of Counsel for his
defence.” (U.S.C. Const. Amend. VI.)
“All persons born or naturalized in the
United States, and subject to the jurisdiction
thereof, are citizens of the United States and of
the State wherein they reside. No state shall
make or enforce any law which shall abridge the
privileges or immunities of citizens of the
United States; nor shall any State deprive any
person of life, liberty, or property, without
due process of law; nor deny to any person

within its jurisdiction the equal protection of
the laws.” (U.S.C.Const.Amend.XIV,Sec.1.)
QUESTION PRESENTED
Whether the confession of a poorly edu-
cated, mentally abnormal, indigent defendant,
not told of his right to counsel, taken while he is
in police custody and without the assistance of
counsel, which was not requested, can be
admitted into evidence over specific objection
based on the absence of counsel?
180 MIRANDA V. ARIZONA MILESTONES IN THE LAW
U.S. SUPREME
COURT,
OCTOBER 1965
BRIEF FOR THE
PETITIONER
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
STATEMENT
A. Proceedings on interrogation and trial
Petitioner was charged with having kidnapped
and raped an eighteen year old girl in the vicinity
of Phoenix, Arizona, on March 3, 1963.
A psychiatric report, made by a court-
appointed psychiatrist (R. 6-9), gives the
background of petitioner. Miranda, an indigent,
was 23 years old at the time of the interrogation,
and working as a truck driver and warehouse-
man. He had completed eighth grade and
started on ninth grade before dropping out of
school. Petitioner has a considerable sexual

preoccupation, as illustrated in his interpreta-
tion of certain proverbs;
1
he has been involved
in a series of sex offenses. The doctor concluded
that petitioner “has an emotional illness. I
would classify him as a schizophrenic reaction,
chronic, undifferentiated type” (R. 9).
Petitioner was, at the time of his apprehen-
sion, suspected of another, wholly unrelated
crime. That incident, the robbery of a woman,
may also have involved a threat of rape. The
robbery occurred several months before the
instant episode (R. 6-7). On March 13, 1963,
defendant was arrested at his home and taken
in custody to the police station where he was
put in a lineup consisting of four persons.
2
He
was there confronted and identified by the two
complaining witnesses, the one for robbery
and the other for rape. Miranda was then taken
to Interrogation Room 2 at the local police
headquarters (R. 37) and there interrogated on
both matters.
The two matters were at first consolidated
in the trial court, with one sanity examination
covering both, but were later separated for trial.
(See report in 401 P. 2d at 718.) The petitioner
was convicted of both offenses in separate trials.

The two cases were treated by the Supreme
Court of Arizona as companions; State v.
Miranda, 98 Ariz. 11, 401 P. 2d 716 (not this
case) and 98 Ariz. 18, 401 P. 2d 721 (this case),
both decided on April 22, 1965.
Only the kidnapping-rape case has been
brought here. However, since the interrogation
was joint, some reference needs to be made to
the other record, and, with the consent of
opposing counsel, an extract has been tendered
to this Court. It is reprinted as an appendix
to this brief and is the basis of this paragraph.
After the lineup, i t was Officer Cooley, who
had arrested Miranda, who took petitioner to
Interrogation Room 2. There he and Officer
Young conducted the questioning. Officer Young
did not tell Miranda that anything he said would
be held against him, nor did he tell Miranda
of his right to consult an attorney (Appendix,
reproduction of Transcript, p. 48). Officer Young
believes that Miranda was told that he need not
answer their questions (Appendix, reproduction
of Transcript, p. 60) but no mention was made
of the right to counsel.
The absence of advice to petitioner regard-
ing his right to counsel is amplified by the
record in the instant case. Here, Officer Cooley
also testified as to interrogation in Room 2 of
the Detective Bureau (R. 37), and narrated
extensively a confession he attributed to the

petitioner (R. 38-40). A written statement,
3
obtained from Miranda while he was under the
interrogation in Room 2, was then put into
evidence (R. 40, R. 69). Officer Young confirmed
that defendant was not told of any right to advice
of counsel (R. 45). When the confession was
offered into evidence, defense counsel expressly
objected “because the Supreme Court of the
United States says a man is entitled to an
attorney at the time of his arrest.” The confession
was admitted over this objection (R. 41). In
summation, the prosecutor emphasized to the
jury the officer’s testimony as to the interro-
gation, and the written confession (R. 50-51).
The two cases, the robbery and the rape-
kidnapping, were tried by this same judge. In
the instant case Miranda was given a sentence of
twenty to thirty years, and in the robbery case
1
“A rolling stone gathers no moss” is interpreted by Miranda
to mean “if you don’t have sex with a woman, she can’t get
pregnant.” The proverb “people in glass houses shouldn’t
throw stones” is interpreted by Miranda to mean, “a person
with one woman shouldn’t go to another woman.” Apart
from this preoccupation, petitioner also believes that “a
stitch in time saves nine” means “if you try to shut
something in, you keep it from going out” (R. 8-9).
2
See R. 37, 38 where police officers refer variously to custody

and arrest. Under Arizona law, custody is arrest; see Rule 14,
Arizona Rules of Criminal Procedure, Vol. 17, Ariz. Rev.
Stat. p. 175; and Ariz. Rev. Stat. Sec. 13-1401.
3
The written confession says, “I started to take clothes off
her without any force and with cooperation. Asked her to
lay down and she did. Could not get penis into vagina got
about
1
2
(half ) inch in.” It strains credulity to the breaking
point to believe that this sentence was the product of a man
of petitioner’s mentality and comprehension as indicated by
his answers to the questions set forth in footnote 1.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
MILESTONES IN THE LAW MIRANDA V. ARIZONA 181
U.S. SUPREME
COURT,
OCTOBER 1965
BRIEF FOR THE
PETITIONER
he was given a sentence of twenty to twenty-five
years. He thus faces imprisonment of fo rty to
fifty-five years.
B. Proceedings in the Arizona Supreme Court
The Arizona Supreme Court, setting forth the
language of both the oral and the written
confessions at length (R. 79-82), considered the
admissibility of the confessions under the
decisions of this Court. It held that Escobedo

v. Illinois, 378 U.S. 478, 84 Sup. Ct. 1758, 12 L.
Ed. 2d 977 (1964) was “a controlling precedent”
only where five elements occur, one of which is
that “The suspect must have requested and been
denied the opportunity to consult with his
lawyer” (R. 87). This element being absent, the
court held that:
“[N]otwithstanding the fact that he did not
have an attorney at the time he made the
statement, and the investigation was begin-
ning to focus upon him, defendant’s consti-
tutional rights were not violated, and it was
proper to admit the statement in evidence”
(R. 93).
Accordingly, Miranda’sconvictionwas
affirmed.
SUMMARY OF ARGUMENT
There is a right to counsel for arrested
persons when interrogated by the police. The
law has been growing in this direction for more
than thirty years. The federal experience from
Johnson v. Zerbst, 304 U.S. 458, 58 Sup. Ct. 1019,
82 L. Ed. 1461 (1938) through the series of cases
culminating i n Mallory v. United States, 354 U.S.
449, 77 Sup. Ct. 1356, 1 L. Ed. 2d 1479 (1957),
and the Public Defender Act of 1964 (78 Stat. 552,
18 U.S.C. Sec. 3006A), and applying Federal
Criminal Rules 5 and 44, amount to a require-
ment that all defendants be informed of their
right to counsel and be given counsel swiftly upon

their arrest. In the states, Powell v. Alabama, 287
U.S. 45, 53 Sup. Ct. 55, 77 L. Ed. 158 (1932)
asserted as a constitutional requirement of state
procedure that a person charged with a capital
crime have “the guiding hand of counsel at every
step in the proceedings against him.” 287 U.S. at
69. This requirement was buttressed by repeated
decisions of this Court that it would accept no
forced confessions, Brown v. Mississippi, 297 U.S.
278, 56 Sup. Ct. 461, 80 L. Ed. 682 (1936), or
those obtained in such circumstances that the
exclusion of “friends, advisers, or counselors”
made it highly likely that force was used,
Chambers v. Florida, 309 U.S. 227, 238, 60
Sup. Ct. 472, 84 L. Ed. 716 (1940).
The right to counsel remained in some
suspense during the period governed by Betts v.
Brady, 316 U.S. 455, 62 Sup. Ct. 1252, 86 L. Ed.
1595 (1942), but during the years following
Betts, the views w ere rapidly developed by just
short of a majority of this Court that secret
confessions obtained without counsel between
arrest and arraignment were invalid; Haley v.
Ohio, 332 U.S. 596, 68 Sup. Ct. 302, 92 L. Ed.
224 (1948); In re Groban’s Petition, 352 U.S.
330, 77 Sup. Ct. 510, 1 L. Ed. 2d 376 (1957).
This view had the support of four Justices of the
present Court in Crooker v. California, 357 U.S.
433, 78 Sup. Ct. 1287, 2 L. Ed. 2d 1448 (1958);
Cicenia v. La Gay, 357 U.S. 504, 78 Sup. Ct.

1297, 2 L. Ed. 2d 1523 (1958).
When the right to counsel was recognized at
the arraignment period, Hamilton v. Alabama,
368 U.S. 52, 82 Sup. Ct. 157, 7 L. Ed. 2d 114
(1961), and for all crimes at trial, Gideon v.
Wainwright, 372 U.S. 335, 83 Sup. Ct. 792, 9 L.
Ed. 2d 799 (1963), and when it was recognized
that the privilege against self-incrimination
applied to the states as well as the federal
government, Malloy v. Hogan, 378 U.S. 1, 84
Sup. Ct. 1489, 12 L. Ed. 2d 653 (1964), any view
that counsel was not required for interrogation
became untenable. Hence counsel was required
for interrogation at least where requested in
Escobedo v. Illinois, 378U.S.478,84Sup.Ct.
1758, 12 L. Ed. 2d 977 (1964); and the fact
that a request happens to have been made at
that particular case cannot be controlling for
Carnley v. Cochran, 369 U.S. 506, 82 Sup. Ct. 884,
8 L. Ed. 2d 70 (1962) held that the right to be
furnishedcounsel does notdependuponarequest.
We therefore urge upon the Court that line
of cases interpreting Escobedo
which holds that
there is a right to counsel during the interroga-
tion period for any person under arrest; People v.
Dorado, 42 Cal. Rptr. 169, 398 P. 2d 361 (1965);
Wright v. Dickson, 336 F. 2d 878 (9th Cir. 1964);
United States ex rel. Russo v. New Jersey, 351 F. 2d
429 (3d Cir. 1965); Collins v. Beto, 348 F. 2d 823

(5th Cir. 1965); Commonwealth v. Negri, 213 A.
2d 670 (Pa. 1965).
We deal with the basic principle, the
principle expressed by Justice Douglas in his
concurring opinion in Culombe v. Connecticut,
367 U.S. 568, 637, 81 Sup. Ct. 1860, 6 L. Ed. 2d
1037 (1961), that “any accused—whether rich
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
182 MIRANDA V. ARIZONA MILESTONES IN THE LAW
U.S. SUPREME
COURT,
OCTOBER 1965
BRIEF FOR THE
PETITIONER
or poor—has the right to consult a lawyer
before talking with the police.”
This constitutional principle is not incom-
patible with proper law enforcement. It will
have no effect on organized crime, whose
members know the method of combat with
society all too well; the principle here advocated
as a practical matter of solid experience applies
primarily to the poor, the ignorant, and
frequently, those of limited mental ability. The
right to counsel under public defender systems
may w ell be costly, but the dollar cost of
preservation of a constitutional right is no
reason for ignoring that right.
The larger problem is whether extending the
right to counsel into the interrogation period

will unduly handicap the police in their work.
Numerous reports of actual experience are
analyzed in the brief to show that this hazard
need not be heavily weighed. Concrete experi-
ences for various cities are reported including
the observation of Judge George Edwards of
the United States Court of Appeals for the
Sixth Circuit who had been Detroit’s police
commissioner in 1962 and 1963. Judge Edwards
attempted to apply “Supreme Court standards.”
He found no ill effects and much benefit. A
review of actual experience shows that third
degree abuses are not some remote fantasy;
they happen now, and so does wrongful deten-
tion without charge and without counsel. These
things occur in great numbers in today’s United
States. They are practices which, as the scrupu-
lously meticulous Horsky Report for the District
of Columbia concludes, “arrest for investiga-
tion should cease immediately.”
At best, as a practical matter, confessions
obtained from ignorant persons without coun-
sel are the product of skilled leading by trained
prosecutors or investigators. See the opinion of
Judge Smith in United States v. Richmond, 197
F. Supp. 125 (D. Conn. 1960). Even without
physical abuse, confessions are obtained by
means wholly unworthy of free people. The evil
of the “led confession” is particularly apparent
in the instant case in which the defendant was

clearly led into assertions which only dubiously
originated with him, and without which would
have led to his conviction for a grave but lesser
offense.
When this defendant went into Interro-
gation Room 2, instead of having “the guiding
hand of counsel” to which we believe the
principles of Powell v. Alabama entitled him, he
had the guiding hand of two policemen. When
he came out of Interrogation Room 2, there was
no longer any point in giving him counsel—his
case was over. We believe that such practices are
barred by the Sixth and Fourteenth Amend-
ments to the Constitution of the United States.
ARGUMENT
When Miranda walked out of Interrogation
Room 2 on March 13, 1963, his life for all
practical purposes was over. Whatever happened
later was inevitable; the die had been cast in that
room at that time. There was no duress, no
brutality. Yet when Miranda finished his conver-
sation with Officers Cooley and Young, only the
ceremonies of the law remained; in any realistic
sense, his case was done. We have here the clearest
possible example of Justice Douglas’ observation,
“what takes place in the secret confines of the
police station may be more critical than what
takes place at the trial.” Crooker v. California, 357
U.S. 433, 444-45, 78 Sup. Ct. 1287, 2 L. Ed. 2d
1448 (1958) (dissenting opinion).

The question presented is whether a def-
endant in such circumstances is entitled to
be told of his right to counsel and to have a
meaningful opportunity to consult counsel
before the law disposes of him. For “what use
is a defendant’s right to effective counsel at
every stage of a criminal case if, while he is held
awaiting trial, he can be ques tioned in the
absence of counsel until he confesses?” Justices
Douglas, Black, and Brennan in Spano v. New
York, 360 U.S. 315, 326, 79 Sup. Ct. 1202, 3 L.
Ed. 2d 1265 (1959).
I. THERE IS A RIGHT TO COUNSEL FOR
ARRESTED PERSONS WHEN
INTERROGATED BY THE POLICE
We deal here with growing law, and look to
where we are going by considering where we
have been. The existence of a right to counsel of
any sort at any time did not exist in medieval
England; Plucknett tells us that not until the
15th Century was counsel allowed to argue
points of law; that in 1695 counsel was allowed
in treason trials; and that not until 1836 was
counsel allowed in felony cases.
4
4
Plucknett, A Concise History of the Common Law, 385-86
(2d ed. 1936), citing for the 1837 development to 6 & 7 Will.
IV, c. 114.
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While English statutes did not provide for
counsel in felony cases before 1836, in practice
counsel did participate in English criminal trials
before the American Revolution.
5
This is of
consequence in understanding early American
constitutional and statutory provisions of sub-
stantially the same vintage as the Bill of Rights.
Many of these expressly or in practice asserted
a right to counsel (New Hampshire, Vermont,
Massachusetts, Rhode Island, New York, Mary-
land, North Carolina, Georgia), and some of
them even at that early time required that
appointed counsel be made available (Connecti-
cut, New York (dubitante), Pennsylvania, New
Jersey, Delaware, and South Carolina).
6
Speaking
broadly, therefore, the Sixth Amendment was in
general accord with the English and American
practice of its time: “In all criminal prose cu-
tions, the accused shall enjoy the right to
have the assistance of counsel for his defence.”

Sixth Amendment problems came to the
Court surprisingly late, both as to federal and
state procedure.
A. Federa l experience
The leading case is Johnson v. Zerbst, 304 U.S.
458, 58 Sup. Ct. 1019, 82 L. Ed. 1461 (1938). In
that case, petitioner, without counsel, had been
convicted of counterfeiting. There was a conflict
as to whether or not he had asked for counsel.
The decision decisively establishes as an “obvi-
ous truth that the average defendant does not
have the professional legal skill to protect
himself when brought before a tribunal with
power to take his life or liberty ” 304 U.S. at
462-63. The opinion, quoting from Powell v.
Alabama, 287 U.S. 45, 68, 69, 53 Sup. Ct. 55, 77
L. Ed. 158 (1932), repeats that a defendant
“‘requires the guiding hand of counsel at every
step in the proceedings against him . ’” 304 U.S.
at 463. Hence in Johnson v. Zerbst, the Court
declared that “the Sixth Amendment withholds
from Federal Court, in all criminal proceedings,
the power and authority to deprive an accused
of his life and liberty unless he has or waives the
assistance of counsel.” Ibid.
7
The Court further declared that “since the
Sixth Amendment constitutionally entitled one
charged with crime to the assistance of counsel,
compliance with this constitutional mandate

is an essential judicial prerequisite to a federal
court’s authority to deprive an accused of his
life or liberty.” Id. at 467.
The requirements of Johnson v. Zerbst were
carried into effect by Rules 5 and 44 of the Rules
of Criminal Procedure. Rule 5 expressly provides
that any arrested person should be taken
“without unnecessary delay before the nearest
available commissioner” whoistotelltheaccused
both of his right to stand silent and of his right to
counsel. Rule 44 confirmed this provision by
providing for appointment of counsel if need be.
But it should always be remembered that these
rules were simply manifestations of the Sixth
Amendment as declared in Johnson v. Zerbst.
Rule 5 with its provision for arraignment
“without unnecessary delay” became the battle-
ground for the immediate issue now before
the Court. If the defendant is brought before the
commissioner instantly, he cannot be interro-
gated before being informed of his right to
counsel. On the other hand, if the period
pending presentment is protracted, the right
to counsel can, as in the instant case, be made
meaningless because the defendant may be in
such a position before the arraignment that a
combination of Clarence Darrow and John
W. Davis reincarnated could do him no good.
In McNabb v. United States, 318 U.S. 332, 63
Sup. Ct. 608, 87 L. Ed. 219 (1943), the issue was

whether a confession should be excluded which
was obtained in the course of an extended
interrogation. The defendants “had no lawyer.
There is no evidence that they requested the
assistance of counsel, or that they were told that
they were entitled to such assistance.” 318 U.S.
at 335. This Court, taking up the matter from
the standpoint of “civilized standards” of
justice, id. at 340, found that the procedure
followed “tends to undermine the integrity of
the criminal proceeding.” Id. at 342. The Court,
analyzing the proper division of functions in
criminal law enforcement, declared that proper
procedure “aims to avoid all the evil implica-
tions of secret interrogation of persons accused
of crimes.” Id. at 344.
McNabb scrupulously avoids constitutional
interpretation, restricting itself to a matter of
proper federal pract ice. The McNabb rule was
not applied in United States v. Mitchell, 322 U.S.
5
Comment, An Historical Argument [etc.], 73 Yale L.J. 1000,
1027-28 (1964); and see historical analysis in Powell v.
Alabama, 287 U.S. 45, 53 Sup. Ct. 55, 77 L. Ed. 158 (1932).
6
Id., appendix, 73 Yale L.J. at 1055-57.
7
The case also considered the subject of waiver, a matter we
do not develop here because there is no waiver question in
the Miranda case, there being no suggestion that the

defendant had the faintest notion of any right to counsel.
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65, 64 Sup. Ct. 896, 88 L. Ed. 1140 (1944) where
the confession was held to be so immediate that
it was construed to be spontaneous. However,
the rule was applied again in Upshaw v. United
States, 335 U.S. 410, 69 Sup. Ct. 170, 93 L. Ed.
100 (1948), a case in which the defendant
confessed during a thirty-hour detention. The
Court in Upshaw stressed that the object of the
McNabb rule and of Rule 5 was to “check resort
by officers to ‘secret interrogation of persons
accused of crime.’” 335 U.S. at 412. The matter
of obtaining counsel was considered by the
dissent, which observed that the practical effect
of speedy application of the rule was that
“prompt hearing gives an accused an opportu-
nity to obtain a lawyer,” with all of the
consequences of giving legal advice to “the
illiterate and inexperienced. ” 335 U.S. at 424.
The matter was again reviewed in Mallory v.
United States, 354 U.S. 449, 77 Sup. Ct. 1356,
1 L. Ed. 2d 1479 (1957). In Mallory, the
defendant, like the defendant here, was charged

with rape. He was interrogated for about ten
hours after his arrest, the inquiry going deep
into the night, at the end of which he made a
confession. The next morning he was brought
before a commissioner. The Court noted that
the Criminal Rules were adopted “since such
unwarranted detention led to tempting utiliza-
tion of intensive interrogation, easily gliding
into the evils of ‘the third degree;’” and that
therefore the police could detain a person only
until “a committing magistrate was readily
accessible.” 354 U.S. at 453.
The Court held that the time interval
permitted between arrest and presentation to a
magistrate was intended to give “little more
leeway than the interval between arrest and the
ordinary administrative steps required to bring
a suspect before the nearest available magis-
trate.” It added that a person was to be
arraigned “as quickly as possible so that he
may be advised of his rights But he is not to
be taken to police headquarters in order to carry
out a process of inquiry that lends itself, even if
not so designed, to eliciting damaging state-
ments to support the arrest and ultimately his
guilt.” Id. at 453-54. The Court noted that the
defendant had not been “told of his rights to
counsel or to a preliminary examination before
a magistrate, nor was he warned that he might
keep silent ” Id. at 455. The opinion

concluded “it is not the function of the police
to arrest, as it were, at large and to use an
interrogating process at police headquarters in
order to determine whom they should charge
before a committing magistrate on ‘probable
cause.’” Id. at 456.
Mallory was the unanimous expres sion of
this Court. Once again the case did not formally
involve a constitutional issue , but rather the
interpretation of the rules of criminal proce-
dure. Unlike its predecessor, the opinion did
not refer to constitutional standards. Nonethe-
less, Mallory, by its express recognition of the
legitimate need for counsel during the interro-
gation, went far to establish for the federal
system the principle here advocated.
B. The constitutional principles applied to
state criminal proceedings; the development
to Escobedo The development of constitu-
tional doctrine as applied to state proceedings
can be grouped around three key decisions,
Powell v. Alabama, 287 U.S. 45, 53 Sup. Ct. 55,
77 L. Ed. 158 (1932); Betts v. Brady, 316 U.S.
455, 62 Sup. Ct. 1252, 86 L. Ed. 1595 (1942);
and Gideon v. Wainwright, 372 U.S. 335, 83
Sup. Ct. 792, 9 L. Ed. 2d 799 (1963).
(a) The Powell period (1932–1942) Powell
is too familiar to warrant restatement. In this
famous rape case, counsel was appointed but
exercised only a nominal function, permitting

defendants to be hustled to trial. The function
of counsel was described as “pro forma.” The
Court held that:
“defendants were not accorded the right of
counsel in any substantial sense. To decide
otherwise would simply be to ignore
actualities The prompt disposition of
criminal cases is to be commended and
encouraged. But in reaching that result the
defendant, charged with a serious crime,
must not be stripped of his right to have
sufficient time to advise with counsel and
prepare his defense.” 287 U.S. at 58-59.
This Court in Powell recognized that the right
to counsel was a growing, not a static, constitu-
tional right. It refused to be guided by the
standards of England at the time the Constitution
was adopted, following instead the more liberal
practice of the various colonies. The right to
counsel was held to be one of those “‘fundamen-
tal principles of liberty and justice which lie at the
base of all our civil and political institutions,’” id.
U.S. at 67, quoting Hebert v. Louisiana, 272 U.S.
312, 316, 47 Sup. Ct. 103, 71 L. Ed. 270 (1926); it
was expressly held to be an integral part of the
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right to a fair hearing. This led Justice Sutherland
to the classic passage: the person charged with the
crime “requires the guiding hand of counsel at
every step in the proceedings against him.” This
said the Court, was true for men of intelligence
and even more true for “the ignorant and
illiterate, or those of feeble intellect.” 287 U.S.
at 69. The trial court therefore must first give
the defendant the right to employ counsel, and
second, if need be, must appoint counsel. The
Courtmadenodecisionastonon-capitalcases,
but as to capital cases it held that:
“where the defendant was unable to employ
counsel, and is incapable adequately of
making his own defense because of igno-
rance, feeble-mindedness, illiteracy, or the
like, it is the duty of the court, whether
requested or not, to assign counsel for him
as a necessary requisite of due process of
law; and that duty is not discharged by an
assignment at such a time or under such
circumstances as to preclude the giving of
effective aid in the preparation and trial of
the case.”
Miranda strikingly parallels the Scottsboro
case; here, as there, the defendant did not have
counsel “at such times or under such circum-
stances as to preclude the giving of effective

aid in the preparation and trial of the case.”
Immediately after Powell, the right to counsel
cases began to relate directly to the forced
confession cases; as this Court said in Mallory,
supra, secret interrogation, which is interrogation
without counsel, tends to slide into the third
degree. Thus in Brown v. Mississippi, 297 U.S. 278,
56 Sup. Ct. 461, 80 L. Ed. 682 (1936), the leading
confession by torture case, the Court mentioned
Powell as illustrative of the principles of basic
justice, observing that “the state may not deny
to the accused the aid of counsel.” In Brown,
trial counsel failed to make proper objections to
confessions obtained by violent beating. In
Chambers v. Florida, 309U.S.227,60Sup.Ct.
472, 84 L.Ed.716 (1940),a longadditionalstepwas
taken. In Brown, it was indisputable that physical
violence had been applied to the defendants. In
Chambers there was a factual dispute as to whether
or not there had been physical compulsion. This
Court nonetheless held that the protracted ques-
tioning, in all of the circumstances, banned the
confession under the Fourteenth Amendment,
noting that the defendants had been held and
interrogated “without friends, advisers, or coun-
selors.” 309 U.S. at 238.
The state of the law as it stood in relation to
right to counsel and confessions in 1940 may
fairly be summarized as follows:
In the federal courts there was an absolute

right to counsel in criminal cases. In the state
courts there was an absolute right to counsel,
and appointed counsel at that, at least in capital
cases, the matter being reserved as to non-
capital cases. A confession obtained by force
could not be used, and a confession obtained
by protracted interrogation where there was an
unresolved dispute as to force, and where the
defendant had been interrogated, among other
things, “without counselors” denied due pro-
cess. There was, however, an ambiguity left
open by the Powell case. The Court had declared
in Powell that a person charged with a crime
“requires the guiding hand of counsel at every
step in the proceedings against him;” but there
had not yet been resolved the question of
whether “every step in the proceedings” really
meant “every step in the proceedings,” which
would include interrogation, or whether, despite
the broad sweep in the language, something less
was intended.
8
(b) The Betts period (1942–1963) Betts, like
Powell, is too familiar to need restatement. The
case held, in its chief conclusions, that while
counsel was required in capital cases and in
some undefined other cases, it was not required
in all cases. But on the way to reaching that
decision, Betts also decided one other point of
great importance in the instant case. It expressly

recognized that under the Sixth Amendment as
interpreted in Johnson v. Zerbst, supra, appointed
counsel was required “in all cases where a
8
This summary does not take account of Lisenba v.
California, 314 U.S. 219, 62 Sup. Ct. 280, 86 L. Ed. 166
(1941). Lisenba involved a confession obtained upon
protracted interrogation. The majority noted expressly that
“counsel had been afforded [the petitioner] and had advised
him.” Apparently petitioner saw his attorney as much as he
wished up to the critical day of his interrogation and
confession. 314 U.S. at 230-31, 240. Hence the majority, in
upholding the use of the confession, expressly noted that
this was not a case in which he had been interrogated
“without the advice of friends or of counsel;” (id. at 240)
and the Court further observed that if a person held were
incommunicado, subject to questioning for a long period,
“and deprived of the advice of counsel,” (ibid.) it would
inspect the matter with great care. On the other hand, the
dissent shows that the defendant was without counsel on
the critical confession day, 314 U.S. at 242. In view of these
specialized facts, we put the case aside in considering the
immediate problem.
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186 MIRANDA V. ARIZONA MILESTONES IN THE LAW
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BRIEF FOR THE
PETITIONER